[Fsfe-ie] Copyright consultation

[Ben North]

Evening all,

Could I have some feedback on the below, at this stage at the level of
overall points and structure?  (Rather than 'I think "essential" is
better than "vital"' etc.)

Thanks,

Ben.


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A research report by the EFF,

    Unintended Consequences: Twelve Years under the DMCA
    http://www.eff.org/wp/unintended-consequences-under-dmca

documents a good range of abuses in the US of the analogous legislation.
I've taken an example or two from it below.  I'm undecided as to whether
we should include a copy with our submission.

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Letter:

What are our points?  I think:

Fair use: put back the 'fair use trumps DRM' principle.  Free SW is
'right to create own tools to use legitimately-purchased material in our
own 'fair dealing' ways'.

Innovation: cite some examples of abuse of the DMCA to hinder
innovation, ideally keeping a Free Software angle.  What do we want?  A
general 'interoperability / competition' right?

Research: chill on publishing discussion security vulnerabilities.

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The headings in [] are for our own use in thinking about the draft,
although could possibly be left in.

Stuff in {{}} needs filling in or deciding about.  Wording needs
tweaking throughout.

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    Dear NNN,

    We would like to respond to the minister's invitation for
    submissions regarding a review of copyright and related rights.


[Who are IFSO?  What is Free Software?]

    The Irish Free Software Organisation represents the interests of
    Free Software in Ireland --- the 'Free' refers to freedom rather
    than price.  Free Software confers on its users the right to run,
    study, change and distribute it.  A great deal of innovation and
    technological progress has been made possible by Free Software, such
    as {{ABC, XYZ; Android phones?}}  Vital for Ireland's reputation as
    an innovative economy is the freedom to rapidly innovate, building
    on earlier work.  Also {{esp. 'young'?}} people need to be able to
    study and learn from existing software to best become good at
    writing their own.  Free Software should play a central role in this
    process.


[Seize chance to prevent abuses of 'anti-circumvention'; restore balance
with public's rights.]

    IFSO acknowledges the need to prevent commercial-scale copyright
    infringement.  At the same time, the public's rights must also be
    protected.  We consider that the 'anti-circumvention' bits in the
    current law strike the wrong balance, and urge the minister to
    reform the law in the following ways.


[We can learn from the US experience with its DMCA; EFF report.]

    In many ways our European and Irish legislation is similar to the
    Digital Millennium Copyright Act in the USA.  We can therefore take
    some lessons from the USA's experience, where the anti-circumvention
    bits have been abused to the detriment of the public, and also
    innovation and competition.


[Fair use is good; ensure not neutered by DRM.]

    We welcome the minister's reference to a US-style 'fair use'
    doctrine.  We urge him to learn from the unintended consequences of
    their DCMA legislation.  Purchasers of, for example, DVDs have fair
    use rights, but cannot exercise them because of the encryption on
    DVDs.  Creators of tools for unlocking DVDs, restoring consumers'
    ability to exercise their fair-use rights, have been sued, and
    products withdrawn.  The public suffers.  We urge the minister to
    reinstate the principle of s.374 of the Copyright and Related Rights
    Act, 2000, which ensured that 'permitted acts' overruled 'rights
    protection measures'.

    {{Want to write our own software to make fair use of material we've
    legitimately purchased.}}


[Innovation is harmed by (even threat of) DMCA-style suits.]

    Increasingly, computer software plays a role in products.  In the
    US, this has opened the door to abuses of the DMCA, with the result
    that beneficial innovation and competition is hindered.

    For example, the printer manufacturer Lexmark, aiming to maintain
    its monopoly position in the lucrative market for refills, sued
    under the DMCA to prevent distribution of a component which would
    have enabled other manufacturers to create compatible refills.

    Although many of these cases were ultimately resolved in favour of
    the innovator, the fear that a potential innovator might be drawn
    into a very costly legal battle has a chilling effect on innovation.

    {{We urge the minister to ensure that innovation, in the offering of
    products which have legitimate uses, is not threatened.  Any
    concrete suggestion we can make?}}


[Academic research is harmed by (even threat of) DMCA-style suits.]

    Especially in the area of computer security, high-quality academic
    research has often been suppressed because it exposes flaws in
    somebody's product.  It is generally accepted that computer
    security, vital in this age where more and more business is
    conducted online, is advanced by full and open discussions.
    Manufacturers have historically been very poor at fixing flaws,
    thereby leaving their customers vulnerable, until the flaws are made
    public.  We urge the adoption of the principle that the carrying
    out, publication and discussion of research is permitted, even when
    it is inconvenient for particular manufacturers.


[People should 'own' their devices.]

    Another area where DRM-style restrictions impede innovation is in
    software for appliances / devices.  Members of the public should
    have the right to write and run their own software on devices they
    own, but this is often legally risky under the current framework.
    {{Is the recent Sony case a good or bad example?  Don't want to be
    seen as encouraging 'piracy'.}}

    Use this opportunity to bring clarity to the right to reverse
    engineer in order to build compatible devices / software.  Closed
    systems hamper innovation and competition.  True when the
    'closedness' is technical, but even more so when there are legal
    threats.


    Thank you for your consideration of this submission.

    IFSO.